JUDGMENT - C. MOOKERJEE, C.J.:---Mr. Savant appearing on behalf of the respondents has raised a preliminary objection as regards the maintainability of this appeal preferred against the order dt. 9th March, 1986 of Daud, J., allowing the appeal under section 104(1) of the Code of Civil Procedure, 1908, preferred by the original defendants 8 and 9-respondents 8 and 9 against the order under O. XXXIX, Rr. 1 and 2 of the Code passed by the learned Judge, City Civil Court. Bombay, upon the plaintiffs' ---Appellants Notice of motion. In view of the Division Bench decision of this Court in (Obedur Rehman v. Ahmedali Bharucha)1, 1982(1) Bom.C.R. 430 and the recent Division Bench judgment in the case of (Krishna Yashwant Shirodkar v. Subhash Krishna Patil)2, Letters Patent Appeal No. 129 of 1987 disposed of on 10th Feb, 1988 reported in 1982(2) Bom.C.R. 252 sitting in appeal we are bound to take the same view that the present appeal is barred under section 104(2) of the Civil P.C. and therefore, the appeal is liable to fail without entering into the merits of the order passed by the learned Single Judge. The learned Counsel appearing for the plaintiffs appellant has submitted that in view of the decisions of the Supreme Court in the case of (Union of India v. Mohindra Supply Co.)3, A.I.R 1962 S.C. 256 and (Gulab Bai v. Puniya)4, A.I.R. 1966 S.C. 637, we ought to refer to a larger Bench the determination of the question as regards maintainability under Cl. 15 of the Letters Patent appeals against orders passed by a learned Single Judge in appeals provided under section 104 read with O. XLIII, R. 1 of the Code. He has also relied upon several other decisions of other High Courts in support of the submission that notwithstanding the bar under sub-section (2) of section 104 of the Code, right to prefer such an appeal under Clause 15 had been preserved under section 4 of the Code. In spite of very persuasive submissions made on behalf of the appellants, we are unable to accept the contention of the learned Counsel for the appellants that the Supreme Court decision in the case of ( Shah Babulal Khimji v. Jayaben)5, A.I.R. 1981 S.C. 1786, was contrary to the earlier Supreme Court decisions in the cases of Union of India v. Mohindra Supply Co., A.I.R. 1962 S.C. 256 and Gulab Bai v. Puniya, A.I.R. 1966 S.C. 637. In the present case before us it is unnecessary for us to consider a situation in which the High Court is called upon to decide whether it ought to follow the later Supreme Court decision rendered by smaller number of Judges or the earlier Supreme Court decision given by a larger Bench, because the Supreme Court in the case of Shah Babulal Khimji v. Jayaben, A.I.R. 1981 S.C. 1786, among a very large number of cases had considered its earlier decision in Union of India v. Mohindra Supply Co., A.I.R 1962 S.C. 256. Fazal Ali, J, who delivered the judgment upon consideration of the judicial precedents and the various provisions of law at page 1807 of the report had recorded the conclusions of the Court. He inter alia held that there was no inconsistency between section 104 read with O. XLIII, R. 1 and the appeals under the Letters Patent and there was nothing to show that the Letters Patent in any way excluded or overrode the application of section 104 read with O. XLIII, R. 1 or to show that these provisions would not apply to internal appeals within the High Court. Alternatively, by process of analogy, O. XLIII, R. 1 was held applicable to such appeals. Their Lordships further held that the concept of the Letters Patent governing only the internal appeals in the High Court and the Code of Civil Procedure having no application to such appeals was based on a serious misconception of the legal position.

2. So far as this Court is concerned the point as to whether the ratio of the Supreme Court decision in Shah Babulal Khimji v. Jayaben, A.I.R. 1981 S.C. 1786, would apply to appeals preferred to the Division Bench against orders passed

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